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SCO-Novell Hearing Set for September 15 & Motion to Dismiss - as text
Tuesday, August 31 2004 @ 01:31 AM EDT

Pacer indicates that the SCO-Novell hearing on Novell's motion to dismiss is going to be held on September 15 at 2 PM before Judge Kimball:

8/30/04 44 Notice of Hearing filed : Motion hearing set for 2:00 9/15/04 for [35-1] motion to dismiss the Amended Complaint and motion for summary jgm To be held before Judge Kimball cc:atty ( Ntc generated by: KJ) (blk) [Entry date 08/30/04]

That's not only the same day as the SCO v. IBM hearing on IBM's 10th Counterclaim, it's the same time. I have no idea what it means. It could mean someone goofed, or it could mean Judge Kimball is an efficient person and has an idea of how to wrap some things up. Or he may have some questions he wishes addressed before he decides one case and needs everyone there at once to make his decision.

If you wish to review, all the PDFs the motion is based on can be found here, and the Memorandum in Support of their motion is here. And here's Novell's Motion to Dismiss as text. It looks like September 15 is going to be quite a day.

**************************

MORRISON & FOERSTER LLP
Michael A. Jacobs (pro hac vice)
Matthew I. Kreeger (pro hac vice)
David E. Melaugh (pro hac vice)
[address, phone, fax]

ANDERSON & KARRENBERG
Thomas R. Karrenberg, #3726
John P. Mullen, #4097
Heather M. Sneddon, #9520
[address, phone, fax]

Attorneys for Defendant Novell, Inc.

____________________________

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION

________________________________

THE SCO GROUP, INC.,

a Delaware corporation,

Plaintiff,

vs.

NOVELL, INC.,

a Delaware corporation,

Defendant.

__________________________________

NOVELL, INC.'S MOTION TO DISMISS

Case No. 2:04CV00139

Judge Dale A. Kimball

_____________________________

Defendant Novell, Inc. ("Novell"), by and through its attorneys of record, hereby moves this Court to dismiss the Amended Complaint filed by The SCO Group, Inc. ("SCO"), pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief may be granted.

The basis for SCO's single cause of action against Novell for slander of title is that Novell made ten "false oaths," "misleading public representations" and "wrongful assertions" concerning Novell's ownership of UNIX copyrights. (Am. Compl. ¶19.) However, given the context in which Novell's statements were made and the public controversy surrounding the ownership of UNIX copyrights, SCO cannot prevail on its slander of title claim against Novell because (1) Novell has a privilege to publicly assert a rival claim to the UNIX copyrights; (2) Novell has a privilege to publish its rival claim to parties with a common interest in the UNIX copyrights; and (3) SCO cannot allege malice sufficient to ground a claim for slander of title given the Court's June 9, 2004 Order.

The grounds for this Motion are more fully set forth in the supporting memorandum filed concurrently herewith.

DATED: August 6, 2004.

ANDERSON & KARRENBERG

___[signature]_____
Thomas R. Karrenberg
John P. Mullen
Heather M. Sneddon
Attorneys for Defendant Novell, Inc.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 6th day of August, 2004, I caused a true and correct copy of the foregoing NOVELL, INC.'S MOTION TO DISMISS to be served via first class mail, postage prepaid, to the following:

Brent O. Hatch
Mark R. Clements
HATCH JAMES & DODGE, P.C.
[address]

Kevin P. McBride
[address]

Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[address]

____[signature]_____

  


SCO-Novell Hearing Set for September 15 & Motion to Dismiss - as text | 624 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Here Please
Authored by: NastyGuns on Tuesday, August 31 2004 @ 02:32 AM EDT

Please put any corrections here for PJ please.

---
NastyGuns,
"If I'm not here, I've gone out to find myself. If I return before I get back, please keep me here." Unknown.

[ Reply to This | # ]

OT: Links and Discussions here please!
Authored by: NastyGuns on Tuesday, August 31 2004 @ 02:36 AM EDT

So they are easy to find.

---
NastyGuns,
"If I'm not here, I've gone out to find myself. If I return before I get back, please keep me here." Unknown.

[ Reply to This | # ]

Drooling
Authored by: NastyGuns on Tuesday, August 31 2004 @ 02:44 AM EDT

Oh man am I drooling all over this. I just can't wait to find out what Judge Kimball has in store.

Yes, yes I know what PJ said about the possibilities, but just think if it is not a mistake. You will have Novell, IBM and SCOG lawyers all in the same room. I wonder if it could mean that Judge Kimball already has some preliminary ruling in mind and worked out, just waiting to hear any last minute arguements by counsel before issuing it? Like I said, I'm chomping at the bit for the 15th!

Unfortunately though, if Hurricane Francis continues on it's current projected course, I'm liable to miss all the action.

---
NastyGuns,
"If I'm not here, I've gone out to find myself. If I return before I get back, please keep me here." Unknown.

[ Reply to This | # ]

Has SCO submitted an opposition memorandum on this yet?
Authored by: Darkside on Tuesday, August 31 2004 @ 02:48 AM EDT
I don't recall seeing one, but I could have missed it.

[ Reply to This | # ]

SCO-Novell Hearing - Grand Jury Possible?
Authored by: WBHACKER on Tuesday, August 31 2004 @ 02:48 AM EDT
A non-lawyer here ...

Is it within the powers of a sitting Federal Judge, on the weight of the contradictions, mendacity, and 'gaming' of the court system apparent from the submissions, to recommend a Federal Grand Jury investigation?

Or is he limited to saying, in effect: "Didn't work here. Try your scam somewhere else."

"The World Wonders"

---
Bill Hacker

[ Reply to This | # ]

SCO-Fry on Sept. 15!
Authored by: kawabago on Tuesday, August 31 2004 @ 02:49 AM EDT
SCO bankruptcy sale Sept. 16th! Everything must go, furniture, garbage,
Darl.......guess I repeated myself.

[ Reply to This | # ]

Ok, now I HAVE to go.
Authored by: AG on Tuesday, August 31 2004 @ 02:49 AM EDT
Ok, if thats not a goof up, I'll go. IBM, Novell and NewSCO in the same room at the same time ... NewSCO will have to do a lot of explaining. This is historic and I can't imagine missing this one. The 14th the discovery stuff will be discussed. Its like two for the price of one. Lets hope they are affordable hotels near the federal court building.

[ Reply to This | # ]

More happening on 15Sept04
Authored by: daavery on Tuesday, August 31 2004 @ 03:09 AM EDT
[152-1] DEFENDANT/COUNTERCLAIM-PLAINTIFF IBM'S CROSS-MOTION FOR PARTIAL SUMMARY
JUDGMENT ON ITS CLAIM FOR DECLARATORY JUDGMENT OF NON-INFRINGEMENT

is also scheduled for 14:00 on 15sept04 in front of Judge Kimball

see [209-2]


[ Reply to This | # ]

Predictions
Authored by: Anonymous on Tuesday, August 31 2004 @ 03:28 AM EDT
I see this as a quick one:

1. Judge will tell SCO to go file a copyright suit if they really want this
whole thing resolved. Current one against Novell will be dismissed.

2. Judge will grant IBM's PSJ. Given that SCO can't even prove they own the
copyrights, let alone any infringements, it'll be a slam dunk.

[ Reply to This | # ]

SCO-Novell Hearing Set for September 15 - what can it mean ?
Authored by: Anonymous on Tuesday, August 31 2004 @ 03:33 AM EDT
Here is my theory which fits all this together:

Kimball has perhaps decided to dismiss the Slander of Title against Novell based
on lack of malice. Kimball has also decided that despite the question of
transfer of copyrights, Novel still have authority according to the APA to veto
SCO's legal actions.

So Kimball is perhaps going to say Novell has not slandered SCO's title, SCO's
title remains in dispute but Novel's veto of SCO's lawsuits is valid - so SCO
have no standing to sue IBM or anyone else - case(s) are all over.

[ Reply to This | # ]

I'm really, really sure...
Authored by: Anonymous on Tuesday, August 31 2004 @ 03:40 AM EDT
...that of the three legal teams involved, only one is nervous about what this
means.

[ Reply to This | # ]

Party On?
Authored by: cybervegan on Tuesday, August 31 2004 @ 04:18 AM EDT
This should be an amusing shindig - lets hope it's not a clerical error.

Any bets on the first party game - "Truth or Dare" maybe? ... and SCOG
gets to go first!

-cybervegan

---
Software source code is a bit like underwear - you only want to show it off in
public if it's clean and tidy. Refusal could be due to embarrassment or shame...

[ Reply to This | # ]

Can't wait to hear how they cover this in the conference call tomorrow
Authored by: MikeA on Tuesday, August 31 2004 @ 04:52 AM EDT
I hope that someone asks about it, because I want to hear how they are going to spin this as a good thing. As one poster above very correctly said: Of the three legal teams in the room on Sept. 15th, only one of them should be really worried about this.

---
"You need some facts to win in a court of law, thou doofus." - The Knights of Armonk (Translation by PJ)

[ Reply to This | # ]

SCO-Novell Hearing Set for September 15 & Motion to Dismiss - as text
Authored by: jmc on Tuesday, August 31 2004 @ 05:30 AM EDT
Given that SCO have until 7 Sept to reply to Novell, who will doubtless be
answering, doesn't having the hearing on 15th cut things a bit fine?

Just seems that it's a probable mistake and Judge Kimball has had so much paper
over his desk recently that his clerk has lost track of which goes in the
SCO-v-IBM file and which in the SCO-v-Novell file.

Still I hope I'm wrong - it's almost worth a trip across the pond to see the fun
if so!

[ Reply to This | # ]

SCO-Novell Hearing Set for September 15 & Motion to Dismiss - as text
Authored by: Anonymous on Tuesday, August 31 2004 @ 05:35 AM EDT
I think by the strong position of SCO, it shall win this and IBM is so
embaresed by this , so the settle. I'am looking forward how all you linux people
reacte on this.

[ Reply to This | # ]

Prediction for SCO press conference
Authored by: Anonymous on Tuesday, August 31 2004 @ 05:36 AM EDT
It was all BayStar's fault. We didn't want to do this from the start, they
forced us.. now that we've gotten rid of the nasty
people at baystar we're going to drop all those silly cases.

We knew they were silly all along, we just couldn't do anything because baystar
wouldn't let us.

Did we tell you that baystar did illegal stuff, we are just the innocent victims
of their really nasty stuff.

We are going to keep building our products, because that is the best thing for
us to do.

We never wanted to do this at all.

We love Linus.

We've even offered him a job, but he said that he couldnt' take it - so we've
donated $100M to the penguin house at L.A. Zoo instead.

[ Reply to This | # ]

SCO-Novell Hearing Set for September 15 & Motion to Dismiss - as text
Authored by: Anonymous on Tuesday, August 31 2004 @ 05:37 AM EDT
No no lawyer.

Does the US legal system allow for a jugde to hear 2 related cases to be heard
in the 1 sitting.

Example: rule on Novell's Motion, then based on that hear IBM's case with novel
still in the court room, with the question to Novell (since SCO's copywrite
ownership is in despute) if they feel IBM has violated their copyrights.

This would be the only reason I see for Novell, IBM, and SCO all to be in the
courtroom at once. The judge seems clued in that IBM counter claims can hinge on
SCO vs Novell.

What other valid reasons would a Judge decide to do this, can a judge call their
own witnesses on these sort of things?

[ Reply to This | # ]

IBM-SCO-Novell Hearing Set for September 15 & Motion to Dismiss - as text
Authored by: Brian S. on Tuesday, August 31 2004 @ 06:13 AM EDT
I think we must wait until one of Groklaw's legal eagles comments on this. If it
is not a mistake then SCOG are in serious trouble.

What are a judge's powers over procedure?
Can a judge hear two cases at the same time?
Can a judge decide two cases are so interlinked they can be combined?

If the judge does have power to in some way link two cases, then I think it is
inevitable that we will be feasting on SCOG sandwich before the evening
celebration. At the very least SCOG will be told to get their act together and
iron out their inconsistencies between the two cases. I know SCOG has two teams
but is there an individual or two who have given contradictory evidence.

If the dates are correct, this may not be the end but it sure as **** is the
beginning of the end.

Brian S.

[ Reply to This | # ]

What we need...
Authored by: Anonymous on Tuesday, August 31 2004 @ 06:20 AM EDT

...is someone video taping this one!

Mike

[ Reply to This | # ]

If it's a deliberate conjunction...
Authored by: Darkside on Tuesday, August 31 2004 @ 06:43 AM EDT
...then I don't understand it.

The IBM and Novell cases only really touch at one point: Did Novell transfer
the copyrights to OldSCO? Nothing else in either case has a bearing on the
other, that I can see.

And this point is not at issue in either of these motion. Kimball has already
decided that he can't yet rule that the copyrights weren't transfered. Novell
is arguing that SCO can't prove malice, while IBM have a range of arguments
including the lack of evidence of transfer from OldSCO to SCO. They have been
carefull to avoid, however, making any part of their claim contingent upon the
copyrights not having been transfered to OldSCO.

[ Reply to This | # ]

It is just a schedule
Authored by: spuluka on Tuesday, August 31 2004 @ 06:47 AM EDT
I would not read too much into this joint scheduling. Around here the court
routinely gives everyone who has a hearing before a particular judge on a
particular day the same time to show up. Usually this is a time for the START
of that judges session for the day.

Everyone has to be there so the judges time is used most effciently. I think
these are just two cases before the same judge with need for oral arguments. So
they are scheduled for the same day. Remember how many cases were in the
Detroit court room?

---
Steve Puluka
Pittsburgh, PA

[ Reply to This | # ]

SCO-Novell Hearing Set for September 15 & Motion to Dismiss - as text
Authored by: blacklight on Tuesday, August 31 2004 @ 06:47 AM EDT
I predict that 15 September 2004 will be a bad day for SCOG, assuming that the
Novell-SCOG hearing actually takes place on that day. The Slander of Title suit
is simple enough for Judge Kimball to resolve it simply by doing a comparative
analysis of the motions proferred. Unfortunately for SCOG, SCOG does not meet
the prerequisites for filing a Slander of Title suit. SCOG could plead for more
time and claim that the copyrights issue is being resolved in its litigation
against IBM, but that's pulling a fast one and getting in bad odor with a judge
who will be making a few other key decisions as the IBM litigation progresses.

[ Reply to This | # ]

SCO-Novell Hearing Set for September 15 & Motion to Dismiss - as text
Authored by: micheal on Tuesday, August 31 2004 @ 07:23 AM EDT
IANAL
Assuming that both hearings take place at the same session and both cases are
heard with both sets of lawyers present, then noone can discuss anything that is
under seal. That implies that the judge is going to make a ruling without
discussion.

---
LeRoy -
What a wonderful day.

[ Reply to This | # ]

SCO-Novell Hearing Set for September 15 & Motion to Dismiss - as text
Authored by: Anonymous on Tuesday, August 31 2004 @ 07:49 AM EDT
I noticed that too. SCO conf calls have always previously been mid-afternoon UK
time. I would think they are expecting a massive hit on their shares and hence
have gobe for after hours

[ Reply to This | # ]

Troll/Astroturf Link Suggestion
Authored by: Anonymous on Tuesday, August 31 2004 @ 07:53 AM EDT
A suggestion to save time.

As we all know, troll and astroturf posts are generally repetitive.

Could we not just store a representative sample of these treads, original with
all the answers, on a separate page? Then we only have to reply with a troll
link.

That way, the troller gets a whole tread, trolls+answers etc., all for him-self,
and we do not have to repeat all these arguments time and again.

Rob

[ Reply to This | # ]

So, to sum up the situation, ...
Authored by: bbaston on Tuesday, August 31 2004 @ 07:58 AM EDT
... we may assume that September 15 is payday, judgement day, doomsday, Wednesday, and red dress day. But until now, I'd forgotten that September 15 is an International Penguin Day.

=================================

*On International Penguin Day, it is customary to gather in public places, face away from the sun so as to feel the warmth of satisfaction relieve backache, carpal tunnel syndrome, etc., and have a few more herring -- red herring.

International Penguin Day is held as many times as penguins decide it should be held, but usually the day is one in which there is light around the clock, and red herrings are consumed in large quantities.

When International Penguin Day is observed in areas where darkness comes for more than an hour, it is customary for the bigger penguins to break out the spotlights, and shine those lights on thin spots in the ice, so no little penguins take a bath they didn't plan.

If any penguin (large or small) does crack through some ice, she lets out a mighty roar to let all penguins know that another red herring feast has just begun. Isn't it great to have that bright sun shine on our little feathered friends!

---
Ben
-------------
IMBW, IANAL2, IMHO, IAVO,
imaybewrong, iamnotalawyertoo, inmyhumbleopinion, iamveryold, hairysmileyface,

[ Reply to This | # ]

Maybe novell found an ammendment?
Authored by: NemesisNL on Tuesday, August 31 2004 @ 08:46 AM EDT
stating all copyrights remain with novell and dated after manedment 2?

That would be a show stopper now wouldn't it :-)

[ Reply to This | # ]

SCO-Novell Hearing Set for September 15 & Motion to Dismiss - as text
Authored by: Anonymous on Tuesday, August 31 2004 @ 09:31 AM EDT
"and (3) SCO cannot allege malice sufficient to ground a claim for slander
of title given the Court's June 9, 2004 Order."

Forgive my not remembering... Could someone be kind enough remind me the
contents of the court order?

--andy

[ Reply to This | # ]

IBM-SCO-Novell Hearing Set for September 15 on Lamlaw.
Authored by: Brian S. on Tuesday, August 31 2004 @ 09:47 AM EDT
Lewis A mettler gives his thoughts on the SCOG sandwich.

However its eaten, the outlook is poor for for SCOG.

http://www.lamlaw.com/

Brian S.

[ Reply to This | # ]

NALs, Take Heed
Authored by: Adam B on Tuesday, August 31 2004 @ 10:24 AM EDT

Found a really great set of CDs telling all about civil procedure. It was pretty interesting, and definitely will make you feel like less of a non-lawyer.

Particularly interesting was the idea of a shareholder-derivative suit. Buy SCO stock and you might end up with a cause of action against not SCO, but the directors. It would be nice to see Darl bankrupt, not just SCO.

[ Reply to This | # ]

Common Threads
Authored by: jsoulejr on Tuesday, August 31 2004 @ 10:52 AM EDT
One common thread I see is Novell's right to waive SCOX's
suit against IBM. It certainly would simplify Judge
Kimble's life.

Any others?

[ Reply to This | # ]

Can the judge merge both cases?
Authored by: piskozub on Tuesday, August 31 2004 @ 10:57 AM EDT
It occured to me that one reason for the simultaneous hearings is that the judge might want to merge both the lawsuits sua sponte (on it's own will).

IANAL so I have no idea whether that is possible at all, but that could be interesting. On the other hand, the SCO-Novell suit will probably be dismissed during (or shortly after) the hearing, so the judge may just ask the parties if they will file new suits against each other and if so, propose merging of the cases.

Does that sound crazy to you?

[ Reply to This | # ]

Three teams enter...
Authored by: Anonymous on Tuesday, August 31 2004 @ 11:25 AM EDT
...two teams leave.

[ Reply to This | # ]

Off Topic - MS Security Chief uses Firefox
Authored by: Anonymous on Tuesday, August 31 2004 @ 11:53 AM EDT
This link is from The Inquirer. MS Security Chief uses Firefox for browsing.
Now, why would that be? I heard that IE was better than all the other browsers
combined (please note sarcasm).

http://www.wired.com/wired/archive/12.09/view.html?pg=3

Captain Smegma
"Give no Quarter"
"Take no Prisoners"
"And eat the Dead."

[ Reply to This | # ]

Prosaic explanation?
Authored by: DeepBlue on Tuesday, August 31 2004 @ 12:17 PM EDT
Is it possible the reason may simply be the efficiency of Judge Kimball being
able to prepare himself for both cases at the same time and to make his rulings
with both actions at the forefront of his mind?

He may decide to take action on one that affects the other but I'm not convinced
he has made that decision YET. He may realise it is a possibility and therefore
has scheduled them at the same time.

---
You shall know the truth and the truth shall set you free.

[ Reply to This | # ]

SCO whines about discovery - and is answered...
Authored by: John M. Horn on Tuesday, August 31 2004 @ 12:42 PM EDT
Well, if the hearing on the 15th of September is NOT a mistake, it seems a safe
bet that SCO is NOT going to be awarded more discovery.

Perhaps the parties will walk in and be surprised to see some unfamiliar faces
standing along the walls. After the roll call, the judge will turn to Darl and
Co. and say something like...

"Mr. McBride, Mr. Stowall and Mr. Sontag, I'd like to intruduce you to Mr.
Penny of the FTC, Mr. Samuels of the SEC and Mr. Gonzalez of the Department of
Justice. After this proceeding, they would like a word with you gentlemen. I
suggest you consider their offer carefully and remember, you can't spend money
in prison. If you cooperate with their investigation of a, uhhh, certain
software company, the criminal court is much more likely to be lenient..."


John Horn

[ Reply to This | # ]

SCO-Novell Hearing Set for September 15 & Motion to Dismiss - as text
Authored by: Anonymous on Tuesday, August 31 2004 @ 12:46 PM EDT
Hey, I just thought of something. IBM's 10th counterclaim is not limited in
scope to a declaration that IBM's activities with respect to Linux do not
infringe on any SCO owned copyright. IBM also stuck this little phrase at the
end:
...and that some or all of SCO's purported copyrights in UNIX are invalid and
uninforceable.

This is directly related to the question of who owns the copyrights that is at
the center of the Novell case. To address this last phrase of IBM's 10th
counterclaim, it makes sense to also address the implications on the Novell
case. Is this a good clue that he will answer both together? Novell's motion
to dismiss would then be moot.

Could the judge instead split off this portion of IBM's 10th counterclaim and
link it to the Novell case? The ownership question could make the rest of this
counterclaim moot.

I would be very surprised to get an answer on the copyright ownership without
giving Novell and SCO the chance to properly argue that issue.

[ Reply to This | # ]

Defeat of the masters of the phyrric victory
Authored by: Anonymous on Tuesday, August 31 2004 @ 12:57 PM EDT
I have been to Delphi to consult the Geek Oracle:

The Oracle says that SCO's legal firm, Boeis-Schiller, has never won anything
for anybody. Two companies of great arrogance shall fall come the meeting at the
seat of wisdom.

Its highest profile win, the Microsoft settlement that Boeis acquired, was
useless to all involved. Netscape fell on its sword, now all but dead, a spectre
in the world. Real is still being squeezed out to by Microsoft's bundling
hegeonomy. Not only has the public in its woe not seen its end of the
settlement, but Microsoft has won injunction after injunction against anyone
attempting to publicize the public's settlement options. All still fear the
meance from Redmond, their hard drives filled with spyware, struggling to
download SP2.

Truly Boies-Schiller are the masters of the phyrric victory, winning reputation
for themselves by losing for their clients. The champion of fools, their
loyalties were to none but their own.

Now, the flying of the crow, and the Oracle say the fall at the seat of wisdom
shall come. Among the shareholders of SCO they will bare their chests and there
will be much gnashing of teeth. The errand boys of idiots shall fall dumb. IBM's
lawyers shall gird their loins and women shall weep at the coming war that will
end soon, as the blue sky follows the storm.

Thus spoke the Geek Oracle, the entrails of a PDP-11 at his feet, forecasting
things that will be.

[ Reply to This | # ]

Chambers?
Authored by: overshoot on Tuesday, August 31 2004 @ 01:12 PM EDT
Dare I hope that His Honor will call counsel from all three parties into chambers?

As I understand the prohibition on ex parte contacts, this would be the solution to asking Counsel for SCOX "What the expletive do you think you're trying to pull in my court?" without either doing it in open Court or excluding one of the other parties.

Yeah, I know it's a bit much to hope for. But, golly does the very thought bring fly-on-the-wall fantasies to mind.

[ Reply to This | # ]

Maybe to avoid It is/is not statements
Authored by: Anonymous on Tuesday, August 31 2004 @ 01:15 PM EDT
I don't remember which mutually contradictory things SCO was saying in Novell
v.s. IBM, but having them in proximity will make it more difficult to say
"It IS about copyright" in one case and "It isn't about
copyright" in another, or whatever else they want to play games about.

Pity the poor lawyers from Novell and IBM. They are going to have blood
dripping from the corners of their mouths because they will be biting their
tongues to suppress guffaws.

[ Reply to This | # ]

My guess
Authored by: StLawrence on Tuesday, August 31 2004 @ 01:46 PM EDT
His Honarariousness Judge Kimball will grant Novell's motion to dismiss
SCO's amended complaint.

He will then order a stay on ALL the SCO-IBM motions until such time as
SCO's copyright issue with Novell is resolved.

[ Reply to This | # ]

One other (reverse) connection between Novell/IBM cases
Authored by: Anonymous on Tuesday, August 31 2004 @ 01:50 PM EDT
Everybody is focusing the connection from SCO/Novell -> SCO/IBM, i.e. whether
Novell transfered the copyrights

There is also a reverse connection from SCO/IBM -> SCO/Novell

In SCO/Novell, SCO alleges that part of their special damages from Novell's
slander of title, are extra legal costs incurred against IBM.

So it is *possible* that he wants IBM present at SCO/Novell, rather than (or as
well as) Novell present at SCO/IBM.


Quatermass
IANAL IMHO etc


[ Reply to This | # ]

SCO-Novell Hearing Set for September 15 & Motion to Dismiss - as text
Authored by: jim Reiter on Tuesday, August 31 2004 @ 02:01 PM EDT
It seems that there are three major issues:

1. What, if anything does TSG own, ie. patents, copyrights, etc? How did TSG
come to own these things?

2. What rights did Novell retain when it (novell) sold whatever novell sold to
Santa Cruz Operations, Inc. ie. 4.16 (b)

3. What did Caldera actually do when it (Caldera) released OpenLinux under the
GPL.

I don't think that the exchange of assets between Santa Cruz Operations,
Inc.(SCOI) and Caldera/TSG/NEWCO is that important since SCOI could not transfer
anything it did not legally own. Or, in simple language, SCOI could not give TSG
more than it (SCOI) received from Novell, and SCOI did not receive enough to
support the current action.

The forgoing is a concept McBS has yet to master.

The worm in the TSG apple is 4.16 (b). If the Judge agrees that Novell does
have the 4.16 (b) rights it has exercised, then TSG has no cause against IBM and
the whole thing goes bye bye.

The same goes for the excluded assets in the SCOI/Novell purchase agreement.
While SCOI did have the right to ask for the copyrights (or use of the
copyrighted materials) necessary to conduct its (SCOI) business, I would argue
that that right(S) did not pass to TSG. TSG got what SCOI had at the time and
that did not include any copyrights.

[ Reply to This | # ]

TSG vs. IBM and TSG vs. Novell
Authored by: frk3 on Tuesday, August 31 2004 @ 02:09 PM EDT

The hearing dates and times are the same for one simple reason:

A judicially efficient pummeling of TSG by 1) IBM, 2) Novel and 3) da judge. :)

[ Reply to This | # ]

It Doesn’t Matter Whether SCO Owns Any Copyrights
Authored by: BrianW on Tuesday, August 31 2004 @ 03:07 PM EDT
One common thread I see throughout the discussion here is that the two cases are
linked by the presumption that SCO must prove ownership of SysV copyrights in
order to prevail against IBM’s counterclaim 10. Even Lewis falls into this
trap, saying that unless SCO owns SysV copyrights, it is the wrong party to
litigate IBM’s infringement of UNIX. (That would be true if SCO ever chose to
litigate such a thing, but that’s another story.)

This is incorrect. IBM’s counterclaim 10 is written in such a way that it does
not matter *who* owns SysV copyrights. IBM wants a declaration that its Linux
activities don’t infringe UNIX copyrights, regardless of who owns them. Whether
SCO is in a position to litigate the issue from the standpoint of a copyright
holder is irrelevant. IBM is entitled to ask for the declaratory judgment not
because SCO has chosen to litigate the matter as a copyright holder, but because
SCO has made public accusations and seeks to profit from claims that Linux
contains protected UNIX code.

So even if Judge Kimball decides in the Novell case that SCO absolutely does not
own any SysV copyrights, that will have no bearing on SCO’s ability to defeat
IBM’s counterclaim 10. In other words, a judgment that SCO owns no SysV
copyrights is not an automatic grant of IBM’s counterclaim 10. Proof of
infringement (or a convincing argument that such proof can be obtained through
more discovery) is the only necessary and sufficient element required to defeat
IBM’s counterclaim 10.

And it’s a good thing, too, because if IBM’s counterclaim 10 is allowed to
prevail on the sole basis that SCO doesn’t own the SysV copyrights, then the
judgment will contribute nothing in the way of giving Linux a clean bill of
health with regard to infringement of protected UNIX code.


---
//Brian
#define IANAL

[ Reply to This | # ]

Timing not that sharp
Authored by: darkonc on Tuesday, August 31 2004 @ 03:47 PM EDT
It makes perfect sense to me, in that SCO's gonna be at both.

Also (at least here in BC), 'times' for a hearing are scheduled by session -- 9AM, for example, will get anywhere from a couple of hearings to a couple of dozen, depending on how long the court thinks things will take. In my experience (I've only been around for a dozen or so chambers motions), it's pretty rare for a hearing to actually start right at the scheduled time, unless you're lucky enough to be placed at the start of the queue.

By the time things start, you usually know where you are in the queue,and have a rough idea of when your hearing will start, but you can expect the error to increase as you get to the end of that block of time. If the judge figures that your hearing gonna take a while, (s)he's might schedule you for the end of the morning block with a nice hole for the afternoon. That way, you can finish up the morning, adjourn for lunch and hopefully finish up in time for an early golf Tee (or whatever)

If there were a group of us, we'd normally keep one person floating around as a 'placeholder' to watch the queue and call us in when it looked like our turn was getting rather close. That way, we could sit outside and do other stuff while the court handled all the motions belonging to strangers.

---
Powerful, committed communication. Touching the jewel within each person and bringing it to life..

[ Reply to This | # ]

OT: SCOX result sweep
Authored by: Anonymous on Tuesday, August 31 2004 @ 04:21 PM EDT
Any *guesses* as to SCOX quaterly results?

My guess -$0.20

My rationale: Forbes apparently predicated -$0.24 (so I have read elsewhere) in
the last couple of days. I bet SCO will want to say "we are doing better
than expected" and compare their actual results to Forbes.

Quatermass
IANAL IMHO etc
IANA-investment-guy. This is NOT investment advice!

[ Reply to This | # ]

Repeat after me: "No copyright transferred"
Authored by: darkonc on Tuesday, August 31 2004 @ 04:37 PM EDT
Why doesn't Novell asssert that there has been no copyright transferred. They have implied this by filing for their own copyright registration, but I don't see them asserting the simple fact:

We can't slander the title if we're the ones who hold it.

This is a good bit stronger than 'We honestly believe that we own it', but it would allow Kimball to rule that Novell holds the copyright, which would make life a whole lot easier on IBM, Red Hat, et. al..

I don't think that they even need to file a counterclaim -- Just say "We own it. That's why it's not slander". That would give the Judge room to make the appropriate ruling. If he has to do that sua sponte, it's much more likely to lead to a (successful) appeal.

---
Powerful, committed communication. Touching the jewel within each person and bringing it to life..

[ Reply to This | # ]

SCOsource = $678,000???
Authored by: MikeA on Tuesday, August 31 2004 @ 05:24 PM EDT
what?

---
"You need some facts to win in a court of law, thou doofus." - The Knights of
Armonk (Translation by PJ)

[ Reply to This | # ]

SCOG Conference call.
Authored by: Anonymous on Tuesday, August 31 2004 @ 06:02 PM EDT
SCOG mentions IBM sponsored websites. What can they mean?

[ Reply to This | # ]

Conference call notes
Authored by: MikeA on Tuesday, August 31 2004 @ 06:04 PM EDT
$11.2 million in revenue this quarter
$7.4 million loss total

SCOsource revenue this quarter: $678,000
"either" of these license agreements is confidential

$7.3 million in legal costs this quarter
$0.9 million in scosource operating expenses

New SCO shareholder value plan adopted in case of "takeover" plans.

REVISED legal agreement with lawyers:
$31 million limit on legal fees
B/S/F agrees to stick it out till the end of the case
Increased contingency fee of 20-33%

$43 million in available cash right now

283 patents infringe in Linux.

**********************
Questions Period:
1st question by DION Cornett (didn't catch exact question)
ANSWERS
- some of the $31 million in legal fees apply to already billed fees (will have
$12 million leftover no matter what)
- lots of other established legal firms have expressed doubt about their case!
- Darl - gap between what the world sees and what is actually happening yada
yada yada

Steven Vauhn
Q: shareholders rights plan - is it in response to efforts by others (baystar)
A: we dont want hostile takeover, people ask him all the time about hostile IBM
takeover
Q: are you expecting layoffs? A: possibly, office closing, downsizing.

Maureen Ogara
Q: shareholders rights plan has nothing to do with anything? A: we are worried
about the very cheap price of stock vs value of company - we are takeover
target.

Q; how many staff
A: 230 at end of quarter

Q: how much have you paid to date for legal?
A: look it up yourself - about $15 million

Michael Singer?
Q: how is software development & investment
A: Darl - we have had "Some" interest in additional investment
companies

Capital Guardian
Q: $31 million legal fees limit - $15 million you have already paid - you only
have $16 million left for legal fees?
A: $31M legal limit starts right now
(did not understand any of the answers)
$23 million leftover?

Q: summarize court responses that have been POSITIVE?
A: Darl- IBM court in april 19th and said said SCO "good faith in
discovery" ordered IBM to handover including documents and emails IBM has
NOT delivered as per judges orders. In Novell - they tried to dismiss, that as
not dismissed, so they are trying again - In DC case, they certified AFTER we
sued them, so that was positive, AZ - case was stayed, but we get to do
discovery and possible injunction. Tune in on Sept 14th/15th and see for
yourself. We believe in the IBM case the facts are being misrepresented, they
will not likely be successful in summary judgement - we are very positive.

Steven Shanklan
Q: Legal cap - are you replacing cash with contingency?
A: kinda yes
Q: what factors on decision btw. 20-33%
A: bigger settlement means different %
Q: What new investment interest is there that you spoke about?
A: Darl - blah blah blah
Q: $7M legal fees is your highest you expect in future
A: yes.
************************
END REVIEW
- announced smaller office closings in europe, spain, italy
- Darl: very enthusiastic. DION question about perception is wrong, people are
trying to shout us down, trying to confuse the issue, but we will keep our
arguements confined to the courtroom!

---
"You need some facts to win in a court of law, thou doofus." - The Knights of
Armonk (Translation by PJ)

[ Reply to This | # ]

SCO places $31,000,000.00 cap on legal fees due to massive losses... (link below)
Authored by: John M. Horn on Tuesday, August 31 2004 @ 06:44 PM EDT
Here is the link...

http://www.theregister.com/2004/08/31/sco_q3_revenue_tumbles/

John Horn

[ Reply to This | # ]

INVOICE FOR SERVICES
Authored by: MikeA on Tuesday, August 31 2004 @ 07:11 PM EDT

INVOICE #102846
__________________________________________________

From: Boise, Schiller Flexner
To: The SCO Group
Date: August 31, 2004

RE Cases: IBM, Novell, Autozone, RedHat, DaimlerChysler, Not Including Any & All Future Defendants/Plaintiffs.

__________________________________________________

Fees for services rendered during period from [August 31, 2004] to [The End of Time]:

INVOICE AMOUNT: $31,000,000.00 USD

Payment in FULL due on receipt of invoice.

Thank you in advance for your prompt payment!

Have a nice day.
_______________________________________________________

---< br>"You need some facts to win in a court of law, thou doofus." - The Knights of Armonk (Translation by PJ)

[ Reply to This | # ]

SCO-Novell Hearing Set for September 15 & Motion to Dismiss - as text
Authored by: Anonymous on Tuesday, August 31 2004 @ 07:30 PM EDT
It is common for courts to schedule several cases to be heard during a single
session of the court. All that it means is that all of the cases scheduled for
the same time will be heard one at a time in some order selected by the judge or
clerk or whoever does the scheduling for that particular court. I don't think
there is any real signifcance to the simultaneous scheduling beyond the possible
implication that the judge is going to make short work of both of them.

[ Reply to This | # ]

The Judge wants them together. Which does he want first?
Authored by: webster on Tuesday, August 31 2004 @ 10:01 PM EDT
The judge wants to save time. He may also want to make a ruling. To his
thinking a ruling in one may affect the other. I wonder which one the judge
wants to hear first. This could be key. Indeed one decision may preclude the
other hearing. E.G. If he finds for IBM=No infringing code or action by IBM,
then Novell could not possibly have slandered any title based on the same code,
i.e. Linux. (See below and previous posts[around date of decision]. Novell
motion arises from fact that prior ruling was a little bit
inconsistent/contradictory.) E.G.ii, If he hears Novell first, a finding off no
slander due to no copyright, will tie his hands to find for IBM.

He wants all parties in the room so he won't have to hear SCO repeat their
derivative discovery request in each hearing. Not that it is relevant in
Novell, but they are relentless opportunists. He also may want to be sure of
consistency so all perspectives are there to comment.

It also might mean nothing. It is not unusual for a court to demand everyone at
one time and then schedule them for the rest of the session. There may even be
unrelated cases scheduled at the same time. He could have 4 cases and give 40
minutes each. He could have 4 slots that afternoon. SCO cases would have two.

...dreaming on...

The judge can't help but notice that the SCO suits are fatally awkward. In
neither suit does SCO allege copyrights. So why can't IBM get a declaration
that they don't infringe SCO copyrights? In the Novell suit they allege slander
of title in that Novell claims SCO don't own the Unix copyrights. They don't
allege copyrights. They assume it. They skip an important step. The judge
helpfully concluded that there was an issue of copyright, thus denying SCO
removal Motion to state court, AND opined that the APA and other docs would not
transfer a copyright.

He dismissed SCO v Novell on specific damages. He did not order the dismissal
due to lack of malice out of caution. But he sid there was an issue of
copyrights, so there could not be malice. Novell is holding him to this
finding. He can't say he has jurisdiction due to the copyright issue and also
there could be malice with a copyright issue. Novell is reminding the judge
that (copyright issue = No possible malice) ergo-->Dismiss slander of title.
Guaranteed.

So he will take 5 minutes for this hearing first. Then to IBM cognizant that by
his Novell ruling SCO has no present copyright claim on which to base any
opposition to IBM's PSJ on infringement. He will not want to hear the
derivitive/discovery argument again for long at least. He'll then take 20
minutes to be fair to SCO. IBM will lay low and let the judge ask SCO all the
questions they can't answer.

The judge will rule and tell the proper parties to draft orders and then move on
to the rest of his calendar.

That was a good 50 million IBM laid on Novell to surround old SCO. Can't wait
for the big tangle. We ought to make a board game: "The New
Monopoly" or is that taken?




---
webster

[ Reply to This | # ]
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